U.S. v. SCALA

UNITED STATES OF AMERICA,
v.
SALVATORE SCALA and THOMAS SASSANO, Defendants.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

MEMORANDUM OPINION

Defendant Salvatore Scala, who stands indicted for extortion,
conspiracy to commit extortion, and federal income tax evasion,
moves to dismiss Counts One through Five of the indictment on the
ground that the government's delay in bringing the indictment
substantially has prejudiced his ability to present his defense.*fn1 In the
alternative, he requests a "due process hearing" to explore the
reasons behind the delay in bringing the indictment.

Thomas Sassano, who was indicted for extortion and conspiracy
to commit extortion, moves to suppress evidence obtained through
electronic surveillance on the grounds that the applications for
authorization to conduct the surveillance failed to state
probable cause and failed to support a finding that other
investigative procedures had been tried and failed. He moves also
for a Franks hearing based on his allegation that the
applications contained materially false and misleading omissions.

I. Scala's Motion

A. Facts

On June 20, 2000, Scala was arrested on racketeering and
extortion charges filed in the Eastern District of New York.
After a jury trial, he was convicted on May 22, 2001 of
conspiring to extort Cherry's Video, an adult entertainment club
on Long Island. He was sentenced on November 2, 2001 to a term of
sixty-three months' imprisonment, which he now is serving.

On January 26, 2004, the government presented evidence of
Scala's extortion of a Manhattan business, the V.I.P. Club, to a
grand jury sitting in the Southern District of New York. The
grand jury indicted Scala that same day, but that initial
indictment was filed under seal. After continuing its
investigation, the government presented additional evidence to
the grand jury, which then returned the current six count superseding indictment
against Scala on March 23, 2005.

According to Scala, the V.I.P. Club's operations were overseen
by two men: Frank Marchello, the club's owner and manager, and
John Vargo, both of whom were involved in the club's day-to-day
business and thus would have been aware of any extortion of the
club by Scala. Mr. Marchello died of cancer on January 31, 2002,
after Scala was sentenced for the Cherry's Video extortion
conspiracy, but before he was charged by either the initial or
superseding V.I.P. Club indictment. Mr. Vargo died approximately
seven months ago, before Scala was charged by the superseding
V.I.P. Club indictment.

B. Discussion

Scala argues that the government's delay in bringing the
indictment violated his right to due process in two ways. He
claims that he has lost the ability to present exculpatory
evidence relating to Counts One and Two due to the deaths of
Messrs. Marchello and Vargo. He argues also that had the V.I.P.
Club indictment been brought against him at the same time as the
Cherry's Video indictment, he would have received lesser and/or
concurrent sentences in the event of conviction on both. This, he
argues, prejudices him with respect to Counts One through Five.

As the Supreme Court has stated, the statute of limitations is
"`the primary guarantee against bringing overly stale criminal
charges.'"*fn2 Accordingly, criminal prosecutions brought
within the statute of limitations have a "strong presumption of
validity" and are "only rarely dismissed."*fn3 However, a timely indictment may violate a defendant's right to
due process if pre-indictment delay has caused "`substantial
prejudice' to the defendant's ability to present [a] defense and
`the delay was an intentional device to gain [a] tactical
advantage over the accused.'"*fn4 The defendant bears the
"`heavy burden' of proving both that [he or she] suffered actual
prejudice because of the alleged pre-indictment delay and that
such delay was a course intentionally pursued by the government
for an improper purpose."*fn5

1. Actual Prejudice

Scala has failed to demonstrate actual prejudice to his ability
to present his defense. He broadly states that Messrs. Marchello
and Vargo would have exculpated him entirely on Counts One and
Two. But the only support offered for that claim is assertions in
Scala's memoranda of law as to the beliefs of two unnamed
individuals of the attitudes of Messrs. Marchello and Vargo
toward Scala.*fn6 Proof of actual prejudice must be definite and
specific.*fn7 Counsel's unsworn assertions as to vague
generalities that allegedly lead unnamed persons to speculate
that Messrs. Marchello and Vargo, if alive, would give testimony
helpful to Scala do not show that Scala's ability to present a
defense has been substantially and actually prejudiced.

At oral argument, Scala was given a second chance to submit
affidavits from these anonymous witnesses as to their
recollections of Messrs. Marchello and Vargo and their
predictions of how the deceased club managers would have
testified. However, Scala again declined to submit affidavits
from either the witnesses or counsel.*fn8 Accordingly, there
is no evidence before the Court as to what Messrs. Marchello and
Vargo would have testified, much less specific evidence of how
losing that testimony has caused Scala actual prejudice. "Were
the mere assertion that another person is making a contention as
to materiality sufficient to establish the materiality of
[unavailable evidence], the requirement of proof of actual
prejudice would be a nullity."*fn9 Scala's argument that he has been prejudiced with respect to
sentencing also is without merit. Pre-indictment delay may
violate a defendant's right to due process where it causes
substantial prejudice "to the defendant's ability to present [a]
defense,"*fn10 but there is no basis for concluding that the
loss of an opportunity for a concurrent sentence implicates
constitutional concerns.*fn11 Moreover, the alleged
prejudice again is too speculative. The conduct alleged in the
V.I.P. Club indictment is distinct from the Cherry's Video
extortion conspiracy and is alleged to have continued after Scala
was convicted of that conspiracy, decreasing the likelihood that
a concurrent sentence would have been imposed in a hypothetical
earlier V.I.P. Club conviction. "It is impossible to describe
[such a] claim of prejudice as `definite and not
speculative.'"*fn12 Accordingly, Scala has not shown the
pre-indictment delay has caused him actual prejudice. This
failure alone is fatal to his motion to dismiss.

2. Improper Government Purpose

Even had Scala shown actual prejudice, he has not demonstrated
that the pre-indictment delay "was a course intentionally pursued by the government for
an improper purpose,"*fn13 or an "intentional device to gain
[a] tactical advantage over"*fn14 him.

Scala asserts that the V.I.P. Club extortion underlying Counts
One and Two is alleged to have begun long before he became the
subject of government scrutiny that resulted in the Cherry's
Video charges. Accordingly, he argues, the government must have
been aware of the alleged V.I.P. Club extortion activity during
its earlier investigation and prosecution, and therefore must
intentionally have delayed filing the current indictment in order
to "`keep a card up its sleeve' in the event of an unsuccessful
outcome" to the Cherry's Video prosecution.*fn15

Scala provides no facts on which to base this conclusion, only
speculation as to the government's motives.*fn16 Such
reliance on "`an unavoidable deduction' of deliberate delay" does
not suffice,*fn17 particularly where, as here, the
government has responded with a specific rebuttal describing the
reasons for the length of its investigation.*fn18 "[T]he Due
Process Clause does not permit courts to abort criminal
prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment."*fn19
Accordingly, Scala's speculation as to government motives is
insufficient to show that the government had an improper purpose
in delaying the V.I.P. Club indictment or, for that matter, to
warrant a hearing.

Scala's motion is denied.

II. Sassano's Motion

In an order dated April 19, 2002, the Supreme Court of the
State of New York authorized, for thirty days, the interception
of communications on a cellular telephone used by Sassano. The
state court renewed this order for another thirty days on May 20,
2002, and expanded the order to include Sassano's home telephone
and conversations inside his car. Sassano moves to suppress the
conversations intercepted under these orders on a variety of
grounds.

A. Alleged Lack of Probable Cause  Initial Application

Sassano seeks to suppress first on the ground that there was no
probable cause for the issuance of the initial order.

As an initial matter, the state court's determination that
probable cause existed for the interceptions is entitled to
substantial deference.*fn20 Sassano's argument must be
rejected, therefore, if the state court had a substantial basis
for its finding of probable cause. Moreover, any doubt about the existence of probable cause must be resolved
against the challenge.*fn21

Probable cause is not a particularly demanding standard. "It is
clear that `[o]nly the probability, and not the prima facie
showing, of criminal activity is the standard of probable
cause.'"*fn22 In considering the proof presented by the
government, the court must "make a practical, common-sense
decision whether, given all the circumstances set forth in the
affidavit before [it], including the `veracity' and `basis of
knowledge' of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a crime will be
found in a particular place."*fn23 Thus, the government's
affidavits in support of probable cause "must be read as a whole,
and construed in a realistic and commonsense manner, so that
[their] purpose is not frustrated."*fn24

Sassano attempts to break the affidavit down into insignificant
pieces, arguing that the state court's finding of probable cause
was influenced improperly by the "snowball effect" of the
government's presentation.*fn25 But this approach ignores
the admonition of cases such as Ruggiero and Gates that a
court must look at the government's support for probable cause as
a whole. In other words, a court must look at the snowball, not
the individual snowflakes.

The affidavits clearly provided an ample basis for the finding
of probable cause. The government's initial application was based upon the detailed
affidavit of Joseph Rauchet, Deputy Chief Investigator of the
Organized Crime Task Force of the New York State Attorney
General's Office (the "OCTF"). The evidence of probable cause was
substantial. Three reliable confidential informants provided
information based upon personal knowledge that Sassano was
engaging in gambling and loansharking activities and that he used
his cellular telephone in furtherance of those activities. For
example, one informant stated he or she had overheard Sassano
engaging in loansharking conversations over the cellular
telephone. Another told the F.B.I. that Sassano managed a
large-scale illegal betting operation, overseen on a day-to-day
basis by known bookmakers and dependent on numerous other
individuals to collect gambling and loansharking debts.
Observation by law enforcement agents confirmed that Sassano
repeatedly interacted with known bookmakers and organized crime
members at various locations, including while walking outside.
Rauchet's affidavit established also that Sassano used the
cellular telephone to contact individuals involved in illegal
gambling and loansharking activity as well as members of the
Gambino crime family. The affidavit contained an extensive
analysis of the cellular telephone records, describing numerous
calls over five months to organized crime figures.

This evidence, taken as a whole, constituted a strong showing
that Sassano probably had used, and would continue to use, the
cellular telephone to discuss the various criminal activities
described in the government's application.

B. Alleged Lack of Probable Cause  First Renewal

Sassano challenges also the state court's renewal order, which
authorized the continued interception of conversations over the
cellular telephone as well as the interception of conversations over Sassano's home telephone and inside his car.
Sassano again attempts to discount individual pieces of the
government's presentation and argues that the much of the
evidence has an alternative, innocent explanation.

The government's presentation for the renewal authorization
again included an extensive, detailed affidavit of Rauchet, which
incorporated all the information in the prior version while
adding details from a number of intercepted conversations from
the cellular telephone. The intercepted conversations frequently
were conducted partially in code, and some indicated that Sassano
and his associates were aware of the possibility of electronic
surveillance. The affidavit related details of several
intercepted conversations related to possible criminal activity,
including references to betting, debts, and tribute payments.
Several indicated that Sassano was arranging meetings with the
individuals who, according to the confidential informants, run
Sassano's illegal gambling operation. Other conversations
referred to or arranged meetings with Gambino crime family
members.

The renewal affidavit included also an analysis of Sassano's
home telephone records and pen register, which reflected numerous
calls to known bookmakers, loansharks, and Gambino crime family
members. In regard to Sassano's car, the affidavit described how
law enforcement agents repeatedly had observed Sassano driving in
his car with individuals associated with gambling, loansharking,
and the Gambino crime family, including acting boss Peter Gotti.
At times, Sassano drove with these individuals to or from
meetings with larger groups associated with gambling,
loansharking, and organized crime.

Although the intercepted conversations, telephone records, and
surveillance observations, if considered separately, may not be
dispositive of Sassano's guilt, that is not the applicable standard. Particularly in light of the substantial
deference due the issuing judge, the evidence presented in
support of the renewal application was sufficient to support the
state court's finding of probable case as to the cellular
telephone, the home telephone, the car, and the allegedly
criminal conversations sought to be intercepted.

C. Good Faith Exception

Even if probable cause were lacking, the intercepted
communications still would escape suppression. If probable cause
is found lacking for a warrant, evidence gathered pursuant to the
warrant will be suppressed only if: (1) the issuing judge
abandoned his detached, neutral role; (2) the agent was dishonest
or reckless in preparing the supporting affidavit for the wiretap
order; or (3) the agent's reliance on the warrant was not
reasonable.*fn26 Sassano does not rely on the first or third
scenarios, but instead alleges Rauchet was "overzealous in
telling his version of facts in this case" and "relied upon
blatant speculation and exaggeration."*fn27 But Sassano
points to no specific instances of falsehood or recklessness in
either Rauchet affidavit. Instead, he disagrees with Rauchet's
conclusions regarding the described evidence. The fact that
alternative explanations for the government's evidence may exist,
however, does not show that Rauchet was dishonest or reckless so
as to override the good faith rule and mandate suppression.
Moreover, at oral argument, Sassano's counsel admitted the good faith exception applies here.

D. Alternative Means of Investigation

Sassano next argues the government failed to demonstrate the
inadequacy of alternative investigative means for obtaining the
information sought through the wiretaps, and that its
applications therefore were insufficient.

In approving a wiretap application, a judge must determine that
"normal investigative procedures have been tried and have failed
or reasonably appear to be unlikely to succeed or to be too
dangerous."*fn28 This is not an insurmountable hurdle. The
government must demonstrate only that normal investigative
techniques would prove difficult, not that they would be doomed
to failure. As the Second Circuit has explained,

"`[t]he purpose of the statutory requirements is not
to preclude resort to electronic surveillance until
after all other possible means of investigation have
been exhausted by investigative agents; rather, they
only require that the agents inform the authorizing
judicial officer of the nature and progress of the
investigation and of the difficulties inherent in the
use of normal law enforcement methods.'"*fn29

The statute thus does not require "`that any particular
investigative procedure be exhausted before a wiretap be authorized.'"*fn30 Instead, a "reasoned
explanation, grounded in the facts of the case, and which
`squares with common sense, is all that is required.'"*fn31
Additionally, this Court must afford substantial deference to the
issuing judges' determinations that the government has made this
showing.*fn32

Sassano argues the government's affidavits included boilerplate
and failed to show that alternative methods of investigation were
insufficient. He points to the government's apparent success with
physical surveillance and confidential informants and argues that
the affidavits do not explain why these methods were inadequate
to investigate Sassano's activities. But Sassano incorrectly
assumes that the purpose of the wiretaps was only to obtain
evidence of the sort that the government already had succeeded in
obtaining through its confidential informants, physical
surveillance, and other measures. The wiretaps, in contrast, were
sought and authorized in order to allow law enforcement officers
to intercept conversations thought necessary to explore matters
that the government had not succeeded in investigating through
available means. These included the identities of Sassano's
supervisors, assistants, employees, and victims, the locations of
his gambling wirerooms, and the details as to how his gambling
and loansharking activities were carried out. Probable cause
showings were made to justify such interceptions. Alternative
methods were not likely to be productive in such areas. Physical eavesdropping,
for example, whether by law enforcement or an informant, can
provide access to only one side of a telephone conversation. The
wiretaps were necessary so that the investigative aims of the
government could be achieved, and no other technique would have
sufficed.

Sassano's attack on the form of the governments' affidavits is
equally unavailing. The affidavits describe, with specificity,
numerous other techniques that the government might have
employed, and why those techniques probably would not have been
effective. For example, the affidavits of John B. Kantor,
Assistant Deputy Attorney General with OCTF, which Sassano does
not address, discussed the unsuitability of a grand jury
investigation, physical surveillance, witness interviews,
telephone record analysis, pen registers, confidential
informants, and undercover infiltration. Rauchet's affidavits
provide similar explanations. Sassano complains that these
explanations for the necessity of wiretaps are boilerplate in
organized crime investigations. While that may be true, such a
similarity does not render the affidavits' language ineffective.
It should come as no surprise that the facts supporting the
conclusion that alternative methods would be unavailing often are
similar from one organized crime investigation to another.

E. Request for Franks Hearing

Finally, Sassano moves for a hearing pursuant to Franks v.
Delaware*fn33 in order to challenge the government's
alleged misrepresentations in connection with the wiretap
applications. Before a defendant can obtain a Franks hearing,
he or she first must make a substantial preliminary showing that the alleged misrepresentations are due to the
affiant's "deliberate falsehood [or] reckless disregard for the
truth."*fn34 In seeking to do so, the defendant cannot rely
on a conclusory attack, but must instead make specific
allegations, accompanied by an offer of proof such as affidavits
or otherwise reliable witness statements.*fn35 As discussed
above, however, Sassano has provided no evidence of any false
statement in the government's affidavits, much less made a
substantial showing or an offer of proof. Accordingly, he has not
met the requirements for a Franks hearing.

Sassano's arguments for suppression of the evidence intercepted
from his cellular and home telephones and from his car are
without merit. His motion is therefore denied in all respects.

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